“It appears to me that the powers conferred on the Sessions Court and the High Court under Section 498, Criminal P.C. are wider than those conferred under Section 497, Cr. P.C.
11. At the time of releasing the accused on bail under Section 498, this court has got inherent powers to impose a condition that in case the accused enlarged on bail tampers with prosecution witnesses the bail bond would be cancelled. This Court has got inherent powers under Section 561-A to see that the trial is properly conducted and that the ends of justice are not defeated and if facts are brought to the notice of the Court that the person released on bail is tampering with prosecution witnesses and the ends of justice will be defeated if he is not re-arrested, then the court trying the accused has got the powers to cancel the bail bond and re-arrest him: vide – ‘Emperor v. Rautmal Kanumal’ AIR 1940 Bom 40 (G)
Kaul, C.J.
12. I agree with the view of law taken by Dixit J., that the High Court had the power to grant bail subject to the condition that the Magistrate who took cognizance of the case could cancel the bail if the accused was found to be tampering with the prosecution evidence, and that the order cancelling the bail passed by the Magistrate in this case cannot be held to be invalid for want of legal authority.”
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Madhya Pradesh High Court
Champalal vs State
Equivalent citations: 1956 CriLJ 404
Bench: Kaul, Dixit, Mehta
JUDGMENT
Dixit, J.
1. This reference arises out of a revision petition against an order dated 29-6-1950 of the Additional District Magistrate, Jhabua, cancelling the bail of the applicant Champalal and ordering his re-arrest. The applicant Champalal was arrested on 9-10-49 in connection With offences under Sections 395, 397 398, 126, 120(b), 148 and 332 read with Section 109, I.P.C. A ‘challan against him for these offences was filed on 31-12-49 in the Court of the Additional District Magistrate, Jhabua.
The accused then applied to the Magistrate as also to the Sessions Judge, Jhabua, for being released on bail, but his applications were rejected. Ultimately the applicant was ordered to be released on bail by my learned brother Mehta J. The order dated 23-5-1949 directing the release of the accused on bail also mentioned that:
in case the accused applicant tries to tamper with the prosecution evidence for which there must be definite proof, the trial Court will be at liberty to cancel his bail bond.
In accordance with this order applicant was released on bail. But on 21-6-1950 the prosecution presented an application to the Additional District Magistrate, Jhabua for the cancellation of bail on the ground that the accused was tampering with the prosecution witnesses. The Additional District Magistrate after recording the evidence of some witnesses found that the applicant was tampering with the prosecution Witnesses and on 29-6-50 ordered the cancellation of the bail and rearrested the applicant.
2. The question, that arises for determinetion in this reference, and on which alone arguments were addressed at the Bar, is, whether in the above circumstances the Additional District Magistrate had the power to cancel the bail granted by this Court on finding that the accused was tampering with the prosecution witnesses. The contention of Mr. Hazarilal Sanghi, who appeared for the applicant, is that Sections 497 and 498, Criminal P.C. must be read together, and that, when a person is directed to be admitted to hail by this Court, the provisions of Sub-section 5 of Section 497 of the Code would apply and, therefore, the bail can be cancelled only by this Court.
It was argued that Sections 497 and 498 of the Code do not confer on the Magistrate the power to cancel the bail granted by this Court and that when the Magistrate does not possess that power, no suggestion or direction given by this Court under Section 561A of the Code could confer on the Magistrate a power to cancel the ball granted by this Court. In support of his contentions Mr. Sanghi relies mainly on certain observations of their Lordships of the Privy Council in – ‘Jairam Das v. Emperor’ AIR 1945 PC 94 (A) The observations on which reliance has been placed on behalf of the applicant are these:
The High Court either does possess a power to grant bail in the given circumstances or it does not. If it possesses the power, it possesses it independently of any suggestion or direction given by their Lordships. If it does not possess, no suggestion or direction made or given by their Lordships could confer such a power.
The Privy Council further observed in ‘Jairam Das v. Emperor (A)’ that:
In truth the scheme of Chapter XXXIX is that Sections 496 and 497 provide for the granting of bail to accused persons before trial and the other sections of the chapter deal with matters ancillary or subsidiary to that provision. The only provision in the Code which refers to the grant of bail to a convicted person is to be found in Section 426…. Finally their Lordships take the view that Chapter XXXIX of the Code together with Section 426 is, and was intended to contain a complete and exhaustive statement of the powers of a High Court in India to grant bail, and excludes the existence 01 any additional inherent power in a High Court relating to the subject of bail.
3. The learned Advocate General, on the other hand, contends that Section 498 of the Code is quite independent of Section 497 and is not controlled by Section 497; that the power conferred by Sub-section 5 of Section 497 to cancel bail and rearrest of an accused is expressly limited to cases in which the accused has been released under Section 497 of the Code and that Sub-section 5 of Section 497 does not apply to an accused person who has been released on hail under Section 498 of the Code.
It was contended that as Section 498 of the Code does not make any provision for the cancellation of bail and as there is no special provision to the contrary, the High Court can under Section 561 of the Code make an order directing the cancellation of bail and rearrest of the accused person in order to see that the ends of Justice are not defeated.
It was said that in giving the liberty to the Magistrate to cancel the bail in the event of the accused person being found tampering with the prosecution witnesses the High Court has not in any way delegated its power to cancel the ball to the Magistrate or conferred power on the Magistrate which he did not possess but has simply made a conditional order of bail which was to be operative only so long as the accused did not indulge in certain specified activities and that such a qualified order of bail could be made by the High Court under Section 498 read with Section 561A of the Code.
4. In dealing with the contentions of the learned Counsel for the applicant and of the learned Advocate General, it is first necessary to examine the provisions of Sections 497 and 498. Cr. P.C. Section 497 deals with the powers of the trial Court to grant or refuse bail to person accused of non-bailable offences. Sub-section 1 of this section refers to a stage when the accused is first brought before a Court.
At this stage there is little or no evidence for a Court to act upon and the matter of granting bail to the accused is entirely in the discretion of the Court subject to the restriction that if there are reasonable grounds for believing that the accused is guilty of an offence punishable with death or transportation for life, the accused shall ‘not be released on bail except when the accused is a minor under sixteen years of age or a woman or a sick or an infirm person in which case he may be released on bail.
If the accused is not released at the initial stage of his appearance in a Court, he can still be released subsequently during investigation, inquiry or trial if there are no reasonable grounds for believing that he has committed an unbailable offence but there are sufficient grounds for further inquiry into his guilt.
Then again if after the conclusion of the trial and before the delivery of the judgment the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any non-bailable offence, the Court must release the accused if he is in custody on the execution by him of a bond without sureties for his appearance to hear the judgment delivered.
A person who has been released on bail under Section 497 can under Sub-section 5 of this section be arrosted and committed to custody by the High Court or a Court of Session as well as by any other court if that other Court has ordered the release on bail. It is obvious from the provisions of Section 497 that it gives ample discretion to the trial Court to order release on bail in case of non-bailaole offences subject to the restrictions mentioned in Sub-sections 1, 2 and 4. The High Court has also the power to grant or revoke bail under Section 497 as a Court of revision under Section 439, Criminal P.C.
5. Now coming to Section 498, it will be observed that this section deals with three matters, viz., (1) fixing the amount of bond; (2) the power of the High Court and the Court of Session to admit any person to bail in any case whether appealable on conviction or not, and (3) the power of the High Court and the Court of Session to reduce the bail required by a Police Officer or a Magistrate.
If the provisions of Section 497 are compared with those of Section 498 the conclusion seems to be irresistible that the High Court and the Court of Session are invested by Section 498 with wide powers in the matter of granting or refusing bail not only as Courts of superior or revisional jurisdiction but they have concurrent jurisdiction with the Court of trial Magistrate in the matter.
The High Court can under Section 498 revise the order of the trial Court and hold that the Court should have exercised the discretion in favour of granting bail. The High Court can grant bail to accused persons under Section 498 when the grant of bail to the accused by the trial Court is not permissible under Section 497. The High Court and the Court of Session can also reduce the amount of bail fixed by the Magistrate. The power to grant bail under this section is clearly unfettered by any conditions or limitations imposed by Section 497
There are numerous authorities in favour of this proposition. A reference need only be made to – ‘K. N. Joglekar v. Emperor’ AIR 1931 All 504 (SB) (B) and – ‘Kripa Shankar v. Emperor’ AIR 1948 All 26 (C) I think it is impossible to contend that the power given to the High Court and to the Court of Session under Section 498 is merely incidental and instrumental power to carry into execution all the powers given to a trial Court under Section 497.
The power is clearly supplementary or subsidiary, in that it completes the provisions of Sections 496 and 497 with regard to the grant of bail to accused persons. In my opinion, the powers to grant ball by the High Court or by the Court of Session under Section 498 are wide, uncontrolled by any of the restrictions mentioned in Section 497.
It is true there is under Section 498 no power to cancel ball as there is in Section 497. But if bail is granted by the Sessions Judge under Section 498, the High Court can as a court of revision cancel the bail. So also where the bail is granted by the High Court under Section 498 the High Court can in the exercise of its inherent power saved under Section 561A cancel the bail.
For, the High Court has inherent power to see that the trial is properly conducted and that the ends of justice are not defeated, and if facts are brought to the notice of the High Court which show that unless the person released on bail by the High Court under Section 498 is rearrested and taken into custody, the ends of justice will be defeated, the High Court has inherent power to cancel the bail and direct his’ rearrest.
6. To my mind, the observations of the Privy Council in AIR 1945 PC 94 (A) do not affect the above view of the meaning and scope of Section 498 which has so far been taken by the various High Courts in India. In ‘Jairam Das v. Emperor (A)’ the Privy Council considered the case of granting bail to a convicted person and to whom the Privy Council had given special leave to appeal against his conviction and sentence. The Privy Council held that the High Court has no power to grant bail to a convicted person under Section 498 or Section 561A of the Code and to whom the Privy Council has granted special leave to appeal against his conviction.
The decision of the Privy Council is based on the reasoning that after disposal of criminal appeal by the High Court it becomes ‘functus officio’ and it has no longer any seisin of the case and cannot grant bail to a convicted person and further that the Chapter 39 of the Cr. P. C deals only with the granting bail to accused persons and not to persons who have been convicted and that Section 498 of the Code has no reference to convicted persons; for, if they were covered by 8. 498, it would confer on the Court of Session a power to grant bail to a convicted person appealing to the High Court which under Section 426 is confined to the High Court.
The Privy Council also observed that the jurisdiction to grant bail can exist only under statutory provisions and that the High Court has no inherent jurisdiction to grant bail to convicted persons and that Section 561A of the Code confers no such powers on the High Court.
In my opinion, the observations of their Lordships of the Privy Council referred to by She learned Counsel on behalf of the applicant must be understood with reference to the facts under consideration in that case and limited in meaning by those facts. The Privy Council did not in AIR 1945 PC 94 (A) consider the question Whether the High Court had the power under Section 498 to grant bail to accused persons. It cannot, therefore be said that the observations of the Privy Council that.
the scheme of Chapter 39 is that Section 496 and Section 427 provide for the granting of ball to accused persons before trial, and the other sections of the chapter deal with matters ancillary or subsidiary to that provision
are intended to convey the meaning that Section 496 and Section 497 contain a complete and exhaustive provision with regard to the grant of bail to accused persons by Courts; that Section 498 contains merely incidental and instrumental provisions to carry into execution the powers granted to Courts under Section 497.
It is noteworthy that along with the word “ancillary” the Privy Council also used the words “or subsidiary” thereby indicating that sections other than Sections 496 and 497 in Chapter 39 of the Code deal with matters not merely incidental to the execution of the power conferred on the Courts under Section 497 but they also supplement the provisions contained in Sections 496 and 497 with regard to the grant of bail to accused persons. I have already indicated above how the provisions of Section 498 supplement the power under Section 497 to grant bail.
Similarly the observations of the Privy Council that Chapter 39 of the Code excludes the existence of any additional inherent power in a High Court relating to the subject of bail must be understood with reference to the question that was under consideration before the Privy Council, viz., whether the High Court has inherent power to grant bail. These observations do not, In my view mean that the High Court cannot in the exercise of its inherent powers saved under Section 561A make any order as may be necessary to give effect to any order under Chap. 39, or to prevent abuse of the process of the Court or otherwise to secure the ends of justice in relation to an order under Chapter 39.
Those observations are only intended to emphasise the fact that the jurisdiction to grant bail exists only under statutory provisions and the High Court has no inherent jurisdiction to grant bail to convicted persons.
7. There remains for consideration the question whether when the High Court grants bail to an accused person under Section 498 and directs in that order that it would be open to the Magistrate to cancel the bail if the accused person tampers with the prosecution witnesses, does the High Court delegate to the Magistrate its power to cancel bail and thus confer on him a power which he does not possess under the Code.
In my opinion a direction in the order of the High Court granting bail to the effect that if at any time the Magistrate is satisfied that there are reasonable grounds for believing that the accused is tampering with the prosecution witnesses he would be at liberty to cancel the bail is not a direction delegating to the Magistrate the power of the High Court to cancel the bail.
The High Court by its order granting the bail has also exercised its discretion to cancel the bail in future on the ground of tampering with prosecution witnesses, leaving it to the Magistrate to determine the fact of tampering With the prosecution witnesses, necessssary for the High Court’s direction with regard to the cancellation of the bail to become operative.
The High Court has by such an order as in this case while granting bail to the accused has also taken the decision to cancel the bail on the ground of tampering with the prosecution witnesses and the High Court has itself laid down the condition with regard to the ope ration of the order granting bail and its cancellation in future and everything which is to follow upon the condition being fulfilled.
Conditional orders of this kind are in many cases convenient and are certainly not unusual in matters relating to bail and it is within the competency of the High Court to make such orders. The view that the High Court has power to rescind any order issued under Section 498 by it in the exercise of its inherent powers preserved under Section 561A of the Code and that a Magistrate would have the power to cancel the bail if the High Court’s order granting bail to the accused specifies that the grant of bail is only temporary and that it would be open to the Magistrate to cancel the ball at a certain stage in the proceedings or on the fulfilment of certain conditions, has also been taken in – ‘Mirza Mohammad v. Emperor’ AIR 1932 All 534 (D); – ‘Crown Prosecutor, Madras v. N. B Krishnan’ AIR 1945 Mad 250 (E) and – ‘Seoti v. Rex’ AIR 1943 All 366 (FB) (P).
8. For the above reasons, in my judgment the Additional District Magistrate, Jhabua had the power to cancel the bail granted by this Court to the applicant when the Magistrate in accordance with the order of this Court granting the bail found as a fact that the applicant was tampering with the prosecution witnesses. As no arguments were addressed by the learned Counsel for the applicant and the Advocate General on the finding of the Magistrate as to the tampering of prosecution witnesses, I express no opinion as to Its legality or correctness.
Mehta, J.:
9. I agree with my learned brother Dixit J., that in pursuance of the direction given by the High Court the Additional District Magistrate Jhabua had the power to cancel the bail bond.
10. It appears to me that the powers conferred on the Sessions Court and the High Court under Section 498, Criminal P.C. are wider than those conferred under Section 497, Cr. P.C.
11. At the time of releasing the accused on bail under Section 498, this court has got inherent powers to impose a condition that in case the accused enlarged on bail tampers with prosecution witnesses the bail bond would be cancelled. This Court has got inherent powers under Section 561-A to see that the trial is properly conducted and that the ends of justice are not defeated and if facts are brought to the notice of the Court that the person released on bail is tampering with prosecution witnesses and the ends of justice will be defeated if he is not re-arrested, then the court trying the accused has got the powers to cancel the bail bond and re-arrest him: vide – ‘Emperor v. Rautmal Kanumal’ AIR 1940 Bom 40 (G)
Kaul, C.J.
12. I agree with the view of law taken by Dixit J., that the High Court had the power to grant bail subject to the condition that the Magistrate who took cognizance of the case could cancel the bail if the accused was found to be tampering with the prosecution evidence, and that the order cancelling the bail passed by the Magistrate in this case cannot be held to be invalid for want of legal authority.
13. At the hearing before the Pull Bench the question whether on merits there was a case for cancellation of bail or not was not argued. The case will now be fixed before a Single Judge for consideration of that matter.
when bail can be cancelled.
When Bail can be cancelled.
“It is well settled that the matters to be considered in an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of accused absconding or fleeing if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail (see Prahlad Singh Bhati vs. NCT, Delhi 2001 (4) SCC 280 and Gurcharan Singh vs. State (Delhi Administration) AIR 1978 SC 179). While a vague allegation that accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert.”
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Supreme Court of India
State Through C.B.I vs Amaramani Tripathi on 26 September, 2005
Bench: A Bhan, R Raveendran
CASE NO.:
Appeal (crl.) 1248 of 2005
PETITIONER:
State through C.B.I.
RESPONDENT:
Amaramani Tripathi
DATE OF JUDGMENT: 26/09/2005
BENCH:
Ashok Bhan & R.V. Raveendran
JUDGMENT:
J U D G M E N T
(Arising out of S.L.P. (CRL) NO.3503 OF 2004) With
Criminal APPEAL NO.1249/2005
(Arising out of S.L.P. (Crl.) No.769 OF 2005)
State of U.P. through C.B.I. … Appellant
Vs.
Madhumani Tripathi … Respondent
BHAN, J.
Leave granted.
The State of Uttar Pradesh through CBI aggrieved by the orders dated 29th April, 2004 and 8th July, 2004 passed by a Single Judge of Allahabad High Court (Lucknow Bench) in Crl. Misc. Case No.1402(B)/2004 and No.1954(B)/2004 releasing the accused Amarmani Tripathi (Accused No.5) and Madhumani Tripathi (Accused No.4) on bail have filed these appeals.
On 9th May, 2003 Madhumita Shukla was shot dead in her house located in Paper Mill Colony by two persons who were later on identified as Santosh Kumar Rai and Prakash Chandra Pandey. Investigation in the case revealed that Madhumita Shukla was killed pursuant to a conspiracy involving Amarmani Tripathi and his wife Smt. Madhumani Tripathi, Nidhi Shukla lodged a Report in regard to the blind murder of her sister Madhumita Shukla on 9.5.2003 in the Mahanagar Police Station, Lucknow. The case was transferred to Crime Branch, CID on 17.5.2003. On a request made by the State on 17.6.2003, the CBI took over the investigation.
The case of the prosecution in brief is as follows:
Amarmani Tripathi, a Minister in the U.P. Government, at the relevant time, was having an affair with deceased Madhumita Shukla, a young Poetess. This led to Madhumita’s pregnancy thrice. On the first two occasions, the pregnancy was aborted at the instance of Amarmani. On the third occasion, inspite of pressure and persuasion by Amarmani, Madhumita refused to abort the pregnancy. The post-mortem revealed a six month old foetus in her womb. D.N.A. test of the foetus established the paternity of Amarmani.
Madhumani Tripathi, wife of Amarmani, was upset when she learnt about the illicit intimacy between Amarmani and the deceased. She made several calls to the deceased and her family members to threaten and abuse them. During the end of March, 2003 Madhumani Tripathi informed one Rohit Chaturvedi (cousin of Amarmani) that she was troubled by her husband’s relationship with Madhumita and requested him to help her to teach a ‘lesson’ to Madhumita. Rohit Chaturvedi, therefore, introduced one Santosh Rai as a person who can help her. Madhumani told Santosh Rai that Madhumita should be finished, whatever be the expense.
On 14.4.2003 when Rohit Chaturvedi came to Lucknow, Madhumani asked him to instruct Santosh Rai to do the work assigned to him without delay. On the same evening Rohit Chaturvedi informed Amarmani that Bhabhi Madhumani wanted Madhumita to be eliminated. Amarmani told Rohit that it may be done taking care to see that his name was not linked to the incident. He also stated that being a Minister in the U.P. Govt., shall protect them. Amarmani was no longer interested in Madhumita as she was becoming a nuisance and he had found other interests. Amarmani felt that if Madhumita gave birth to the love-child, it could adversely affect his image as a politician and Minister and also cause problem in his family.
Madhumani kept on pressing Rohit to get the work done. On 1.5.2003 Madhumani told him that all limits have been crossed and action should be taken immediately. Madhumani rang up Rohit several times to tell Santosh Rai to do her work and Rohit passed on the message to Satonsh Rai. Santosh Rai met Madhumani in this connection on 5.5.2003. Santosh Rai assured Rohit that the work will be done within 2 to 4 days. In pursuance of it, on 9.5.2003 Santosh Rai along with Prakash Pandey went to the house of Madhumita and shot her with a country made pistol (katta) from close range, resulting in her death.
According to the prosecution, the murder of Madhumita was a result of the conspiracy among Madhumani, Amarmani, Rohit Chaturvedi, Santosh Rai and Prakash Pandey. Amarmani was arrested on 23.9.2003. On 19.12.2003 a charge-sheet was filed against six accused, namely, (1) Santosh Kumar Rai @ Satya Prakash, (2) Prakash Chander Pandey @ Pappu, (3) Rohit Chaturvedi, (4) Madhumani Tripathi, (5) Amarmani Tripathi and (6) Yagya Narain Dixit. On the date of filing of the chargesheet, accused no.4, Madhumani Tripathi, was absconding. However, when the first bail application filed by Amarmani Tripathi was rejected by the High Court by order dated 11.3.2004 on the ground that the co-accused (Madhumani Tripathi) had not surrendered, Madhumani surrendered on 25.3.2004.
Amarmani made a second bail application under Section 439 Cr.P.C. in Crl. Misc. Case No.1402(B)/2004. The High Court by order dated 29.4.2004 granted bail to Amarmani on the following reasoning:
a) The entire theory of Amarmani being part of the conspiracy to murder Madhumita was based on the confessional statement of the co- accused Rohit Chaturvedi (recorded on 17.11.2003 by Vikas Dhul, Metropolitan Magistrate, at New Delhi). Rohit had made his confession conditional of being treated as an approver. Rohit had subsequently retracted from the confession. The admissibility of the confession against a co-accused is doubtful.
b) Normally, Courts should first examine the material, other than the confessional statement of a co-accused, to find out if there is any evidence of
conspiracy/abetment. The confessional statement of a co-accused should be considered only as a supporting piece of evidence, and not as the substantive evidence against an accused. The confessional statement of a co-accused, more so, one that has been retracted, cannot be made the foundation for establishing the guilt of an accused. In this case, if the said confessional statement of Rohit is excluded, there is no evidence, direct or otherwise to show that Amarmani was in any manner, party to the conspiracy to kill Madhumita.
c) The other material relied on by the prosecution against Amarmani are: (i) illicit relationship between Amarmani and the deceased; (ii) DNA test report showing that Amarmani was the father of the foetus in the womb of the deceased; (iii) pressure applied by Amarmani on the deceased to abort the pregnancy; (iv) undated letter of the deceased addressed to Amarmani finding fault with him for ignoring her. These were yet to be tested in trial. More importantly it cannot be said that the only inference that can be drawn from the said material is that Amarmani was a party to the conspiracy to murder the deceased. These material can only lead to an inference that the conduct of Amarmani was immoral and that there was an effort on his part to cover up such conduct and nothing more.
d) The criminal history of the accused Amarmani (20 criminal cases ending in acquittal and 4 cases pending including a case of kidnapping) cannot be a ground to refuse bail.
e) The contention of the CBI that the investigation was still in progress in pursuance of the permission for further investigation granted by the High Court by order dated 8.4.2004 under Section 173(8) of the Cr.P.C. was not tenable as such further investigation was only in regard to Madhumani and not in regard to Amarmani. Charge-sheet had already been submitted. Madhumani was in jail and shall remain available for interrogation, if any, by CBI. f) Amarmani was in jail since September, 2003 The investigation was already concluded. There was no chance of Amarmani either fleeing, or tampering with the witnesses. There was nothing to connect the disappearance of the domestic servants of Amarmani, with him, whom CBI wanted to interrogate. If it was found at any stage that he was not co-operating in the trial of the case or found to be tutoring/maneuvering any witness, CBI can move an application for cancellation of bail at that stage.
Amarmani’s wife Madhumani applied to the Sessions Judge, Lucknow for bail in Crl. Misc. Case N.960/2004. It was rejected by order dated 20.4.2004. Thereafter she approached the High Court for bail in Crl. Misc. Case No.1954(B) of 2004. The High Court granted bail to Madhumani by order dated 8.7.2004 on the following reasoning:
a) Madhumani is not the main accused, but only an alleged conspirator/abettor. Her husband, whom the Prosecution considers to be the main conspirator had already been granted bail and grounds on which he was granted bail are also available for granting bail to her. b) Madhumani is only a housewife without any criminal antecedents. She has not been named in the FIR or in the statements of Nidhi Shukla and Desraj (servant of the deceased) recorded under Section 161 Cr.P.C. Her name came to be linked with the murder for the first time in the confessional statement of Rohit made on 17.11.2003. The admissibility of such confessional statement, particularly, against a co-accused is doubtful and that question has to be considered at the time of trial. c) There is no allegation that Madhumani made any attempt to tamper with the evidence. She was available for interrogation on 4.8.2003 and 6.9.2003. When she moved an application on 24.9.2003 for surrender, the special Judicial Magistrate, CBI by order dated 6.10.2003, rejected the application for surrender on the ground that she was not wanted till that date. All circumstances show that Madhumani was available from the date of incident till 6.10.2003. Though she was said to be absconding after her name cropped up in the conspiracy, she subsequently surrendered before Court when the first application of Amarmani for bail was rejected on the ground that she was absconding. There is no chance of her fleeing.
d) The entire material against her regarding intimacy between her husband and the deceased and subsequent developments is purely based on circumstances and the evidence indicated only a possible motive. The mobile phone calls attributed to her and printouts relating thereto are not sufficient to infer any conspiracy, as the Mobile phones used were not in her name, but in the name of her husband. The Parchi allegedly handed over by her to the hired killers (containing the name, address and telephone numbers of the deceased) is yet to be proved as being in her handwriting. e) The prosecution case is based on two contradictory theories of conspiracy, one hatched by her husband, the other hatched by her, by joining hands with her husband. f) The sessions court committed an error in rejecting her bail application being influenced by the fact that it is a media highlighted case and by the fact that her husband is an influential person.
Being aggrieved by the two orders of the Allahabad High Court granting bail to Amarmani and Madhumani, the State has approached this Court. Shri Gopal Subramanium, learned Additional Solicitor General appearing for the petitioner, submitted that the material on record, before the High Court clearly disclosed the following position:
i) That the murder of pregnant Madhumita, a heinous crime, was committed in pursuance of a conspiracy hatched by accused 1 to 5. The murder was committed by the killers (accused 1 & 2), hired by accused no.4 with the concurrence, support and protection of accused no.5, through accused no.3. There was material to show (i) the illicit relationship of Amarmani with the deceased resulting in three pregnancies; (ii) Amarmani’s intention to get out of the relationship; (iii) Amarmani’s attempt to put an end to the last pregnancy also, by requiring his servant Pappu Chaudhary to pose as the father of the foetus and give consent for abortion; (iv) Madhumani’s ire and jealously against the deceased and expression of an intention to get rid of her; (v) Madhumani’s subsequent action in engaging killers (accused 1 and 2) through accused No.3 to kill Madhumita; and (vi) the consent of Amarmani for Killing Madhumita, as instructed by his wife without involving his name and assuring protection to the persons committing the murder.
ii) That Amarmani was interfering with the investigation, by trying to side-track it and mislead the Police into a false trail, planting false stories in the media, creating false evidence and threatening witnesses either directly or by using the police. He even managed to get the Police Officers (including an officer of the Rank of SSP) who were not toeing his line, transferred.
iii) That after release on bail in pursuance to the order of the High Court, Amarmani was attempting to threaten/coerce/buy over witnesses (Nidhi Shukla, sister, Shanti Kumari Shukla and Najib Khan).
iv) That Madhumani had already absconded earlier. Only the rejection of bail application of her husband on that ground made her to surrender. There is every likelihood of her again fleeing, if she continuous to be on bail. Further, if Amarmani alone is denied bail, the threatening of witnesses will be taken over by Madhumani.
On the other hand Shri Rakesh Dwivedi, learned Senior Counsel appearing for Amarmani submitted that this is a case of blind murder. There is no material showing any involvement of Amarmani in the murder or in any conspiracy. There was never any contact between Amarmani and the hired killers. He submitted that the retracted confessional statement of Rohit Chaturvedi which alone linked Amarmani’s name to the conspiracy is to be ignored, in view of the law laid down by this Court; and if it is so ignored, there is absolutely no material at all to show that Amarmani was involved in the conspiracy. The, material, including the statements of Nidhi, Shanti Kumari, Pappu Chaudhary relied upon by the prosecution and the post-mortem report showing the six month foetus and the DNA report showing Amarmani as the father, even if accepted could at best establish an illicit relationship between Amarmani and Madhumita and an attempt to abort the pregnancy and nothing more. He submitted that the conduct of Amarmani, even if it was morally incorrect, can in no way be considered as proof of an intention to kill Madhumita or proof of his being a party to any conspiracy to kill Madhumita. He also stated that any action taken by Amarmani to safeguard himself and his wife, cannot be branded as conspiracy.
Shri KTS Tulsi, learned Senior Counsel appearing for Madhumani similarly contended that if the confessional statement of Rohit is excluded, there is nothing to link Madhumani to the death of Madhumita. He pointed out that the entire material, even assuming to be true, only showed an illicit relationship between Amarmani and the deceased and expression of anger by Madhumani against such illicit relationship and nothing more. He submits that the expression of righteous indignation by a wife and verbal abuse of the girl trying to wreck her marital life, is not evidence of participation in any conspiracy to kill the deceased.
Shri Dwivedi and Shri Tulsi, learned Senior Counsel relied on several decisions regarding the effect of confessional statements. They contended that no interference was called for in regard to the orders of the High Court granting bail to Amarmani and Madhumani. They submitted that the basic rule is bail and not jail, unless there are circumstances suggesting fleeing from justice or thwarting justice either by repeating the offence or intimidating witnesses (vide State of Rajasthan vs. Balchand – 1977 (4) SCC 308 and Gudikanti Narasimhulu vs. Public Prosecutor 1978 (1) SCC 240).
They relied on the decision in Bihar Legal Support Society vs. Chief Justice of India [1986 (4) SCC 767] wherein a Constitution Bench of this Court observed as follows:
“The apex court must interfere only in the limited class of cases where there is a substantial question of law involved which needs to be finally laid at rest by the apex court for the entire country or where there is grave, blatant and atrocious miscarriage of justice. Sometimes, we judges feel that when a case comes before us and we find that injustice has been done, how can we shut our eyes to it. But the answer to this anguished query is that the judges of the apex court may not shut their eyes to injustice but they must equally not keep their eyes too wide open, otherwise the apex court would not be able to perform the high and noble role which it was intended to perform according to the faith of the Constitution makers. It is for this reason that the apex court has evolved, as a matter of self-discipline, certain norms to guide it in the exercise of its discretion in cases where special leave petitions are filed against orders granting or refusing bail or anticipatory bail…… We reiterate this policy principle laid down by the bench of this Court and hold that this Court should not ordinarily, save in exceptional cases, interfere with orders granting or refusing bail or
anticipatory bail, because these are matters in which the High Court should normally be the final arbiter.”
(Emphasis
supplied)
Reliance is next placed on Dolat Ram and others vs. State of Haryana 1995 (1) SCC 349, wherein the distinction between the factors relevant for rejecting bail in a non-bailable case and cancellation of bail already granted, was brought out :
“Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are
necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not
exhaustive) are: interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial.”
They also relied on the decision in S.N. Bhattacharjee vs. State of West Bengal 2004 (11) SCC 165 where the above principle is reiterated. The decisions in Dolat Ram and Bhattacharjee cases (supra) relate to applications for cancellation of bail and not appeals against orders granting bail. In an application for cancellation, conduct subsequent to release on bail and the supervening circumstances alone are relevant. But in an appeal against grant of bail, all aspects that were relevant under Section 439 read with Section 437, continue to be relevant. We, however, agree that while considering and deciding appeals against grant of bail, where the accused has been at large for a considerable time, the post bail conduct and supervening circumstances will also have to be taken note of. But they are not the only factors to be considered as in the case of applications for cancellation of bail.
It is well settled that the matters to be considered in an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of accused absconding or fleeing if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail (see Prahlad Singh Bhati vs. NCT, Delhi 2001 (4) SCC 280 and Gurcharan Singh vs. State (Delhi Administration) AIR 1978 SC 179). While a vague allegation that accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused. We may also refer to the following principles relating to grant or refusal of bail stated inKalyan Chandra Sarkar vs. Rajesh Ranjan, 2004 (7) SCC 528:
“The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a
detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie
concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-
application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:
a. The nature of accusation and the severity of punishment in case of conviction and the nature of
supporting evidence.
b. Reasonable apprehension of
tampering with the witness or
apprehension of threat to the
complainant.
c. Prima facie satisfaction of the court in support of the charge. (see Ram Govind Upadhyay vs.
Sudarshan Singh, 2002 (3) SCC 598 and Puran vs. Ram Bilas 2001 (6) SCC 338.”
This Court also in specific terms held that:
“the condition laid down under
section 437(1)(i) is sine qua non for granting bail even under
section 439 of the Code. In the impugned order it is noticed that the High Court has given the
period of incarceration already
undergone by the accused and the unlikelihood of trial concluding in the near future as grounds
sufficient to enlarge the accused on bail, in spite of the fact that the accused stands charged of
offences punishable with life
imprisonment or even death
penalty. In such cases, in our
opinion, the mere fact that the
accused has undergone certain
period of incarceration (three
years in this case) by itself
would not entitle the accused to being enlarged on bail, nor the
fact that the trial is not likely to be concluded in the near future either by itself or coupled with the period of incarceration would be sufficient for enlarging the
appellant on bail when the gravity of the offence alleged is severe and there are allegations of
tampering with the witnesses by the accused during the period he was on bail.”
In Panchanan Mishra vs. Digambar Mishra, 2005 (3) SCC 143, this Court observed :
“The object underlying the
cancellation of bail is to protect the fair trial and secure justice being done to the society by
preventing the accused who is set at liberty by the bail order from tampering with the evidence in the heinous crime….. It hardly
requires to be stated that once a person is released on bail in
serious criminal cases where the punishment is quite stringent and deterrent, the accused in order to get away from the clutches of the same indulge in various activities like tampering with the
prosecution witnesses, threatening the family members of the deceased victim and also create problems of law and order situation.”
Therefore, the general rule that this Court will not ordinarily interfere in matters relating to bail, is subject to exceptions where there are special circumstances and when the basic requirements for grant of bail are completely ignored by the High Court. (see Pawan vs. Ram Prakash Pandey 2002 (9) SCC 166; Ram Pratap Yadav vs. Mitra Sen Yadav 2003 (1) SCC 15 and Kalyan Chandra Sarkar vs. Rajesh Ranjan 2004 (7) SCC 528.
While a detailed examination of the evidence is to be avoided while considering the question of bail, to ensure that there is no pre-judging and no prejudice, a brief examination to be satisfied about the existence or otherwise of a prima facie case is necessary. An examination of the material in this case, set out above, keeping in view the aforesaid principles, disclose prima facie, the existence of a conspiracy to which Amarmani and Madhumani were parties. The contentions of Respondents that the confessional statement of Rohit Chaturvedi is inadmissible in evidence and that should be excluded from consideration, for purpose of bail is untenable. This Court had negatived a somewhat similar contention, in Kalyan Chandra Sarkar (supra) thus :
“The next argument of learned
counsel for the respondent is that prima facie the prosecution has
failed to produce any material to implicate the respondent in the
crime of conspiracy. In this regard he submitted that most of the
witnesses have already turned
hostile. The only other evidence available to the prosecution to
connect the respondent with the
crime is an alleged confession of the co-accused which according to the learned counsel was inadmissible in evidence. Therefore, he contends that the High Court was justified in granting bail since the prosecution has failed to establish even a prima facie case against the respondent. From the High Court order we do not find this as a ground for granting bail. Be that as it may, we think that this argument is too premature for us to accept. The admissibility or otherwise of the confessional statement and the effect of the
evidence already adduced by the
prosecution and the merit of the evidence that may be adduced
hereinafter including that of the witnesses sought to be recalled are all matters to be considered at the stage of the trial.”
But what is more relevant, in this case is the conduct of Amarmani from day of the murder in trying to interfere, detract and mislead the investigation and to threaten and coerce witnesses. We may refer to the following circumstances disclosed by statements recorded under Section 161 Cr.P.C. :
i) Nidhi Shukla and Shanti Kumari Shukla (sister and mother of the deceased respectively) have stated that on 10.5.2003 Amarmani met them near the mortuary and informed them that he will handle the entire situation and
instructed them with threats, to be careful while making any statement and not to link him or his wife in regard to the murder. This was repeated during the second week of May 2003, by summoning the mother of the deceased to his house. ii) The statement of Mr. Anil Aggarwal, SSP, Lucknow shows that on the intervening night of 9th and 10th May, 2003 (at about 1.00 a.m), Amarmani called him on his mobile phone and made enquiries about the murder and informed him that he or his wife had nothing to do with the murder and that his wife was a very simple house wife and that he (Anil Aggarwal) should help him.
iii) When Anil Aggarwal learnt that there was six month old foetus in the womb of the deceased and that without removing the foetus, the body had been handed over to the relatives of the deceased, he immediately instructed that the body should be brought back and the Doctor should remove the foetus and preserve it for purposes of investigation. In pursuance of it, action was taken to stop the vehicle in which the body was being taken to the native place. Amarmani again called the SSP (Anil Aggarwal) on the mobile phone and told him that he knew Madhumita and that she was a simple girl. That there was some mistake in the report that Madhumita was pregnant and the body of Madhumita had already started decomposing and the family should be permitted to proceed to their village immediately with the body so that funeral can be performed before sun set. iv) That on 15.5.2003 Amarmani again contacted Anil Aggarwal, SSP on his mobile phone and informed him that from his own sources and investigation he had found out that Madhumita was married to one Anuj Mishra, a student of IIT Kanpur, and that he had located the Priest who had performed the marriage in November- December, 2002. He also stated that if the marriage could be proved the aspersion cast on his character can be removed by showing that the deceased was pregnant on account of her marriage with Anuj Mishra. He instructed the SSP to send Yagya Narain Dixit, SO, Manek Nagar to him, so that he would tell him what is to be done to prove such marriage. v) On the same day around 10 p.m. Amarmani again called Anil Aggarwal, SSP urging him to depute Yagya Narain Dixit, SO Manek Nagar (who was apparently close to him and was arrayed as the 6th accused being charged under Section 201 of the IPC. He later on died in an accident) to verify the marriage with Anuj Mishra. Amarmani again called Anil Aggarwal on the morning of 16.5.2003 at around 10 a.m. on the mobile and reiterated the demand. Again on the evening of 16.5.05 he called the SSP on his mobile to enquire about the progress and sounded very anxious and stated that the matter was getting delayed. When the SSP asked Amarmani to send the person who has given the information about the marriage of Madhumita with Anuj Mishra to his office so that he could send some police officer to Kanpur to verify the matter and also informed Amarmani that he (SSP) will decide who should be deputed to verify the matter, the very next day (17.5.2003) the SSP was transferred, at the instance of Amarmani.
The statement of the SSP shows that Amarmani tried to side track the matter by implicating Anuj Mishra and to ensure that the foetus is not removed or preserved or examined. When SSP refused to comply, he was transferred. Kamaal Khan, NDTV correspondent/Bureau Chief, Lucknow and Deepak Gidwani, Bureau Chief, Sahara Samay T.V. have clearly stated that Amarmani informed them that he had complained to the Chief Minister that investigation was not being done properly and got Anil Aggarwal, SSP transferred; and that he also informed them that his private investigation showed that deceased had married Anuj Mishra. vi) Amarmani thereafter managed to ensure that his confidant Yagya Narain Dixit was deputed to threaten Rishi Khare, room mate of Anuj Mishra, to admit that there was a marriage between Anuj Mishra and Madhumita. The statement of Rishi Khare, the room mate of Anuj Misra at IIT Hostel, Kanpur showed that at the instance of Amarmani, Yagya Narain Dixit, SO of Manek Nagar suggested, threatened and coerced him to admit that he was a witness to the marriage of Madhumita with Anuj Mishra in spite of his repeatedly stating that he was not aware of any such marriage; and he even held out promises to Rishi Khare on behalf of Amarmani after repeatedly speaking to Amarmani Tripathi over the phone in his presence. vii) The statement of Rishi Khare shows that he and his father and his landlord were taken by Yagya Narain Dixit to meet Amarmani, who demanded that he should speak about the wedding of Anuj Mishra and deceased. In his presence Amarmani also informed Yagya Narain Dixit that if Rishi Khare refused to admit of being a witness to such marriage he should use tougher methods to make him admit the wedding between Anuj Mishra and
Madhumita. He also threatened Rishi Khare that he can be framed by showing that a country made revolver was recovered from him, thereby landing him in jail.
viii) Kamaal Khan, NDTV correspondent/Bureau Chief, Lucknow and Deepak Gidwani, Bureau Chief, Sahara Samay T.V. were invited by him and told them that he had a major scoope which would turn the entire story of the Madhumita’s case upside down. That Madhumita’s case was not being investigated properly and he was doing his own investigation. That he has been able to identify the real killers of Madhumita. Madhumita was married to Anuj Mishra and the marriage was performed by a priest who was present in the house and was introduced to them.
The evidence collected above discloses that there were repeated attempts by the accused Amarmani to interfere, and side track the investigation and threaten the witnesses to come out with a story that will deflect the suspicion from him and his wife to Anuj Mishra or others. It is also not in dispute that Amarmani was on bail in a kidnapping case, when he indulged in these activities in May, 2003. These materials were placed by the prosecution before the High Court to establish a reasonable apprehension of tampering. The learned Single Judge has, however, completely ignored these materials relating to tampering with evidence/witnesses. This necessitates interference with the order of the High Court.
Shri Subramanium, learned ASG next referred to the threats to witnesses held out by Amarmani after his release on bail. Reliance is placed on the four complaints received by the crucial prosecution witnesses. Nidhi Shukla, sister of the deceased by letter dated 10.9.2004, and Shanti Kumari, mother of the deceased by an undated letter, have made separate complaints to the CBI in regard to efforts made by Amarmani to induce them to accept money through one NK Mishra to settle the matter and that when they refused, he threatened them. Another witness Najib Khan (a family friend of the deceased) has also sent a complaint dated 22.9.2004, stating that on that day two persons knocked on his door, hurled abuses at him and told him that the CBI officers were far away and once the cases were closed, no one will protect him and he will be killed. Lastly, one Birjesh Pathak, Member of Parliament has also sent a complaint dated 16.9.2004 to the CBI alleging that an attempt on his life was made on 7.9.2004 which, according to him, was at the instance of Amarmani. The said allegations are denied in the counter-affidavit filed on behalf of Amarmani by his brother/Pairokar. It is contended that these complaints must have been sent at the instance of the CBI itself. In so far as Brijesh Pathak is concerned, it is also alleged that he is a close confidant of Amarmani’s political rival. However, in the view we have taken, it is unnecessary to examine this aspect.
The High Court has failed to deal with the vast material placed by the CBI which clearly indicated that the accused has, at all material times, tried to interfere with the course of investigation, tamper with witnesses, fabricate evidence, intimidate or create obstacles in the path of investigation officers and derail the case.
The statement of Anil Aggarwal, SSP Lucknow is revealing and in our opinion the High Court on this statement alone should have rejected the bail and, in any event, it is sufficient to allow the present appeal. A senior police officer has stated that the accused asked for his help against his implication in the case. The accused asked the officer not to preserve the foetus and that the body should be taken to her native place for the last rites. The officer also speaks about his being rebuked by senior bureaucrats for recovering the foetus. It is relevant to note that the officer was sought to be misled by the accused by giving false information about a marriage between Anuj Mishra and the deceased. But for his diligence, the foetus would not have been preserved. For doing his duty diligently, the officer was punished with a transfer out of normal course. The very fact that a senior police officer could be transferred out of Lucknow on 17th of May, 2003, clearly shows the amount of influence wielded by the accused. Ajay Kumar Chaturvedi, the first investigating officer who had also refused to tow the line of the accused was also transferred on the same date. Likewise, Mr. Beni Singh Verma, Inspector of Police, CB-CID and Mr. Dinanath Mishra , Inspector of Police, CB- CID were also transferred. S/Sh. N.V. Sirohi, Mr. Vishwa Bhushan Singh, Mr. Sahab Rashid Khan were also transferred but their transfer orders were quashed by the High Court later on.
In Panchanan Mishra case (supra), it has been held that the Court must apply its mind and go into the merits and evidence on record and determine whether prima facie case was established against the accused. It was held that the seriousness and gravity of the crime was also a relevant consideration. That a balance has to be drawn by the Court to protect fair trial and to secure justice being done to the society by preventing the accused who is set at liberty by the bail order from tampering with the evidence in a heinous crime and if there is delay in such a case the underlying object of cancellation of bail practically looses all its purpose and significance to the great prejudice and the interest of the prosecution. The Court summed up the principle that the ground to deny bail will be when by testing the balance of probabilities it appears that the accused has abused his liberty or that there is a reasonable apprehension that he will interfere with the course of justice. It was noticed by the Court that once a person is released on bail in serious criminal cases where the punishment is stringent and deterrent, the accused in order to get away from the clutches of the same indulge in various activities like tempering with the prosecution witnesses, threatening the family members of the victim and also create problems of law and order.
In Prahlad Singh Bhati Vs. NCT, Delhi, 2001 (4) SCC 280, this Court reiterated that if a person was suspected of the crime of an offence punishable with death or imprisonment for life then there must exist grounds which specifically negate the existence of reasonable ground for believing that such an accused is guilty of an offence punishable with the sentence of death or imprisonment for life. The jurisdiction to grant bail must be exercised on the basis of well settled principles having regard to the circumstances of each case. While granting bail, the Court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused and reasonable apprehension of witnesses being tempered with,
In Kalyan Chandra Sarkar case (supra), this Court reiterated that while granting bail discretion must be exercised in a judicious manner and not as a matter of course. It may not be necessary to do detailed examination of evidence and documentation of the merit of the case but there is a need to indicate reasons for prima facie conclusion why bail was being granted particularly where the accused is charged of having committed serious offence.
In the present case, we find that the High Court has granted bail being of the opinion that the extra judicial confession given by Rohit Chaturvedi one of the co-accused may not stand the test of scrutiny by a judicial mind but that by itself was not sufficient to grant the bail. There is voluminous evidence collected by the CBI to show the involvement of Amarmani Tripathi, and his effort to interfere with the investigation of the case before the grant of bail and also after the grant of bail. He tried to change the course of investigation by creating false evidence of the marriage of Madhumita with Anuj Mishra with the help of Yagya Narain Dixit, a police officer, the 6th accused who died in an accident during the course of investigation. There are written complaints with the investigating agency showing that after his release on bail Amarmani Tripathi tried to threaten as well as win over Nidhi Shukla, sister of the deceased, and her mother by offering bribe. In our opinion, the High Court gravely erred in granting bail to Amarmani Tripathi in such circumstances. The High Court practically failed to consider/take into consideration the voluminous evidence which had been collected by the investigation agency and have been referred to by them in their statement of objections to the application for grant of bail.
It is true that the position of Madhumani is somewhat different from the case of her husband. While her husband is a politician and ex-Minister, she is no doubt a house wife. While her husband has several criminal cases against him, she has no such record. While there is material to show attempts by her husband to tamper with the evidence and threaten witnesses, there is nothing to show that she made any attempt to tamper with the evidence. But there is material to show that she had absconded for several months and surrendered only when bail was refused to her husband on the ground that she was absconding. Further when the matter is considered in entirety, with reference to the murder of Madhumita and the propensity of the husband and wife to pressurize and persuade others to act according to their wishes there is reasonable ground for apprehension that if her husband alone is taken into custody, leaving her to remain outside, she may take over the task of tampering the evidence and manipulating/threatening witnesses. Therefore, interference is called for even in regard to the bail granted to Madhumani.
We are conscious of the fact that evidence in this case has yet not been led in the Court. Wherever we have referred to the word “evidence” in this order the same may be read as material collected by the prosecution. Reference to the material collected and the findings recorded herein are for the purposes of these appeals only. This may not be taken as an expression of opinion. The Court would be at liberty to decide the matter in the light of evidence which shall come on record after it is led de hors any finding recorded in this order.
For the reasons stated above, the orders dated 29th April, 2004 and 8th July, 2004 passed by the High Court are set aside. The bail bonds of the respondents in each of these cases are cancelled. Respondents are directed to surrender forthwith and in case they fail to do so, the State should take effective steps to take the respondents in custody.
The appeals stand disposed of.
The grounds for cancellation of bail,
The grounds for cancellation of bail,
release on bail may however be cancelled under Section 437(5) or Section 439(2). Generally thegrounds for cancellation of bail, broadly, are, interference or attempt to interfere with the due course of administration of justice, or evasion or attempt to evade the course of justice, or abuse of the liberty granted to him. The due administration of justice may be interfered with by intimidating or suborning witnesses, by interfering with investigation, by creating or causing disappearance of evidence etc, The course of justice may be evaded or attempted to be evaded by leaving the country or going underground or otherwise placing himself beyond the reach of the sureties. He may abuse the liberty granted to him by indulging “in similar or other unlawful acts. Where bailhas been granted under the proviso to Section 167(2) for the default of the prosecution in not completing the investigation in 60 days, after the defect is cured by the filing of a charge-sheet, the prosecution may seek to have the bail cancelled on the ground that there are reasonable groundsto believe that the accused has committed a non-bailable offence and that it is necessary to arrest.
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Patna High Court
Usha Devi vs The State Of Bihar And Ors.
Equivalent citations: 2006 CriLJ 4435
Bench: C K Prasad
JUDGMENT
Chandramauli Kr. Prasad, J.
Page 1680
1. A child aged about four and half years old, kidnapped for ransom was recovered from the house of the petitioner. Earlier case under Section 363 and 365 of the Page 1681 Indian Penal Code was registered. According to the prosecution, the accused persons were demanding ransom of Rs. five lakhs for release of the child. During the course of investigation petitioner was found involved in the crime. She was arrested and on the failure of the Investigating Officer to submit charge sheet within 90 days she was released on bail in terms of Proviso (a) to Section 167(2) of the Code of Criminal Procedure. Later on, charge sheet was submitted against the petitioner under Section 364A, 363 and 365 of the Indian Penal Code and the learned Magistrate took cognizance of the offence and the case was committed to the Court of Sessions. After commitment of the case petitioner appeared before the trial Court and prayed that she may be allowed to continue on bail, which prayer has been rejected by the 5th Additional Sessions Judge, Fast Track Court, Vaishali by order dated 7.2.2005 passed in Sessions Trial No. 449 of 2004.
2. Aggrieved by the same, petitioner has preferred this application under Section 482 of the Code of Criminal Procedure and her prayer is to quash the aforesaid order and direct continuance of the petitioner on bail.
3. It is relevant here to state that aggrieved by the aforesaid order refusing to allow the petitioner to continue on bail, petitioner earlier filed application for grant of bail under Section 439 of the Code of Criminal Procedure before this Court, which was registered as Criminal Misc. No. 7569 of 2005 Usha Devi v. State of Bihar and this Court by order dated 14.3.2005 rejected the prayer of the petitioner but while doing so it observed as follows:
Hence the learned Chief Judicial Magistrate took cognizance under Section 364-A of the Indian penal Code and gave the above direction and when the petitioner appeared before the learned Additional Sessions Judge and prayed to remain on previous bail, her prayer was rejected by order dated 7.2.2005. It seems that the order of the Additional Sessions Judge dated 7.2.2005 has not been challenged separately and the petitioner has filed this petition under Section 439 of the Code for grant of bail.
Now when the petitioner was granted bail under Section 167(2) of the Code, of course, it cannot be denied that her bail bond can be cancelled only under the provisions of Section 439(2) of the Code but at the same time it is also clear that if during investigation prima facie evidence of graver offence is found, that is also a ground to cancel the bail already granted. In this case also the case was registered under Sections 363 and 365 of the Indian Penal Code but during investigation, prima facie, evidence of graver offence under Section 364A of the Indian Penal Code was found, Therefore, the learned Additional Sessions Judge could cancel the bail and as the victim boy was admittedly recovered from the premises of the petitioner, I do not feel inclined to release the petitioner on bail.
4. Petitioner thereafter filed another application for grant of bail which was registered as Criminal Misc. No. 31721 of 2005 Usha Devi v. State of Bihar and this Court by order dated 6.12.2005 again rejected the prayer of the petitioner but while doing so it gave liberty to the petitioner to assail the order impugned in the present application in the following words:
It, however, may be made clear that this order and the earlier order passed by this Bench rejecting prayer of the petitioner will not prejudice any Court while Page 1682 considering the legality of the order dated 7th February, 2005 by which the bail of the petitioner granted under Section 167 (2) Cr. P.C. was cancelled.
5. Mr. Surendra Kishore Thakur, appearing on behalf of the petitioner contends that bail ones granted for not completing the investigation within stipulated time in terms of Proviso (a) to Section 167(2) of the Code of Criminal Procedure, cannot be cancelled only on the submission of the charge sheet and can be cancelled only on the well known grounds known to law under Section 437(5) and 439(2) of the Code of Criminal Procedure.
6. Dr. Maya Nand Jha, Additional Public Prosecutor, however, contends that the bail granted for non-submission of the charge sheet can be cancelled on merits also in addition to the well known grounds for cancellation of bail.
7. For decision of the aforesaid question, it would be apt to understand the purport of bail granted under the Proviso (a) to Section 167(2) of the Code of Criminal Procedure, hereinafter referred to as the Code. Proviso (a) to Section 167(2) of the Code which is relevant for the purpose reads as follows:
167. Procedure when investigation cannot be completed in twenty-four hours,-
(1) xxx xxx xxx
(2) The Magistrate to whom an accused person is forwarded under this Section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction.
Provided that-
(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding-
(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused persons shall be released on bail if he is prepared to an does furnish bail, and every person released on bail under this sub-section shall be deemed to be released under the provisions of Chapter XXXIII for the purpose of that Chapter.
8. From a plain reading of the aforesaid provision it is evident that the Magistrate to whom the accused is forwarded may authorise his detention for a term not exceeding 15 days in the whole. Further in a case in which the Magistrate has no jurisdiction to try the case or commit it for trial and considers further detention unnecssary he is required to order the accused to be forwarded to the Magistrate having jurisdiction. Such Magistrate may authorise the dtention of the accused Page 1683 beyond the period of 15 days if adequate grounds exists but no Magistrate can authorise the detention of the accused persons in custody for a total period exceeding 90 days or 60 days as the case may be, depending upon the nature of the crime alleged to have been committed. The proviso, therefore, fixes the outer limit within which the investigation is to be completed and if the same is not completed within the period prescribed the accused has right of release on bail if he is prepared to and furnish bail. An accused released on bail for not completing the investigation within the prescribed period is deemed to be released under the provisions of Chapter XXXIII of the Code. It is relevant here to state that the investigation culminates by submission of report under Section 173 of the Code of Criminal Procedure and accordingly, it is said that in case the charge sheet is not submitted within 90 days or 60 days as the case may be, depending upon the nature of crime alleged to have been committed accused has a right to be released on bail if he is prepared to and furnish bail.
9. True it is that by fiction of law an accused released on bail for not completing the investigation within the stipulated time shall be deemed to have been released under Chapter XXXIII of the Code and therefore, the question is as to whether such release shall be considered to be release on bail under Section 437 or 439 of the Code of Criminal Procedure, which fall in Chapter XXXIII of the Code.
10. Section 437 of the Code, confers power on a Court other than High Court or Court of Sessions to grant bail in case of non-bailable offence, same reads as follows:
437. When bail may be taken in case of non-bailable offence.-(1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Sessions, he may be released on bail, but-
(i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment of life;
(ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non bailable and cognizable offence.
Provided that the Court may direct that a person referred to in Clause (i) or Clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm:
Provided further that the Court may also direct that a person referred to in Clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason:
Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court.
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(2) If it appears to such Officer or Court at any stage of the investigation, inquiry or trial as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, (the accused shall, subject to the provisions of Section 446A and pending such inquiry, be released on bail, or, at the discretion of such Officer or Court on the execution by him of a bond without sureties for his appearance as hereinafter provided.
(3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860)or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under Sub-section (1) the Court may impose any condition which the Court considers
(a) in order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or
(b) in order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or
(c) otherwise in the interests of justice.
(4) An Officer or a Court releasing any person on bail under Sub-section (1), or Sub-section (2), shall record in writing his or its ( reasons or special reasons) for so doing.
(5) Any Court which has released a person on bail under Sub-section (1), or Sub-section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody.
(6) If, in any case triable by a Magistrate, the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs.
(7) If, at any time after the conclusion of the trial of a person accused of a non-bailable offence and before judgment is delivered the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered.
11. The aforesaid provision enumerates grounds for grant of bail but prohibits grant of bail in a case when, it appears to a Court other than the High Court or Court of Sessions that, reasonable ground for believing that the accused is guilty of an offence punishable with death or imprisonment for life or cognizable offence in which he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more or having previously convicted on two or more occasions of non bailable and cognizance offence.
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12. Section 439 confers power to the High Court or Court of Sessions to grant bail and to cancel the bail, same reads as under:
439. Special powers of High Court or Court of Session regarding bail. – (1) A High Court or Court of Session may direct –
(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in Sub-section (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section;
(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified:
Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable. with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.
(2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.
13. From a plain reading of the aforesaid provisions, it is evident that there is no restriction either to the Court of Sessions or the High Court to release an accused on bail and in respect of the offence of specified nature may impose any condition which it considers necessary. Proviso to Section 439(1) casts an obligation on the Court to give notice of application for bail to the Public Prosecutor in a case which is exclusively triable by the Court of Sessions or which though not so triable, is punishable with imprisonment for life unless for reasons to be recorded in writing, it is not practicable to give such notice.
14. Section 439(2) of the Code confers power to a High Court or a Court of Sessions to direct arrest and commit such accused who has been released on bail. From a conjoint reading of Section 437 and 439 of the Code of Criminal Procedure, it is evident that so far as power of the Court other than the High Court or the Court of Sessions, meaning thereby the Courts of Magistrate of different classes do not possess power to release such accused persons on bail for offence providing punishment of death or imprisonment for life or cognizable offence in which accused had been previsouly convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more or convicted on two or more occasions of a non bailable and cognizance offence. However, there is no such restirction sofar as the Court of Sessions or the High Court is concerned.
15. I would like to add a word of caution here. The purport of Section 437 of the Code is not that in every case registered for offence punishable with death or imprisonment for life the Magistrate is denuded of its power. In a case, although registered for offence punishable with death or imprisonment for life or imprisonment for seven years or more but it appears to the Magistrate that reasonable ground does not exist for believing that the accused had committed offence punishable with death or imprisonment for life nothing prevents him to release such accused on bail. In nutshell it is the substance of the accusation and believe of the learned Magistrate not the nomenclature under which the case is registered.
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16. Thus an accused released on bail either under Section 437 or 439 of the Code is released on fulfilment of certain conditions, whereas only condition required for release under Proviso (a) to Section 167(2) of the Code is that the investigation is not completed/charge sheet is not submitted within the prescribed period and the accused is prepared to and furnish bail. Section 167(2) ordains that every persons released on bail shall be deemed to be so released under the provisons Chapter XXXIII of the Code but that does not ipso facto mean that the bail order assumes the content and character of the bail order of the kind conceived under Section 437 and 439 of the Code. A bail order under Proviso (a) to Section 167(2) of the Code i.e. a bail order on default, as is popularly known in the legal circle.
17. It is well settled that the grounds for cancellation of bail under Section 437(5) and 439(2) of the Code are identical, namely, bail granted under Section 437(1) or 439(1) of the Code can be cancelled broadly when one or more of the following conditions are fulfilled:
(i) The accused misuses his liberty by indulging in similar activity,
(ii) Interferes with the Course of investigation,
(iii) Attempts to tamper with the evidence,
(iv) Threaten witnesses or indulges in similar activities which would hamper smooth investigation,
(v) There is liklihood of the accused fleeing away to another country.
(vi) Attempts to make himself scare by going underground or becoming unavailable to the Investigating Agency,
(vii) Attempts to place himself beyond the reach of the surety,
(viii) Bail has been granted by an inferior Court in a case involving serious offence shocking to the conscience of the superior Courts
(ix) After investigation the facts disclose commission of graver offence.
18. The grounds referred to above are illustrative and not exhaustive.
19. Are these the only grounds on which the bail granted for non submission of the charge sheet can be cancelled
20. On principle, I am of the opinion that when bail granted otherwise then under Section 167(2)(a) of the Code can be cancelled, if investigation discloses commission of graver offence, there is no justification to hold that an accused released on bail on default, his bail cannot be cancelled on submission of the charge sheet in case it discloses commission of graver offence. I am firmly of the view that bail granted for default cannot be put on a higher pedestal than the bail granted otherwise. I would hasten to add that mere submission of the charge-sheet for graver offence only shall by itself be not the ground for cancelling the bail. Before cancelling the bail the Court will have to be further satisfied that the case is of such a nature in which no Court would had accepted the plea of bail.
21. There is ample authority to support the view which I have taken on principle to which I will refer hereinafter. In the case of Raghubir Singh and Ors. v. State of Bihar , the Supreme Court answered this question and held that mere submission of the charge sheet itself not entail cancellation of bail but at the same time if there exists reasonable grounds to believe that the accused had Page 1687 committed a non-bailable offence and it is necessary to commit him to custody, the bail can be cancelled. Paragraph 22 of the judgment which is relevant for the purpose reads as follows:
22. The result of our discussion and the case law is this: An order for release on bail made under the proviso to Section 167(2) is not defeated by lapse of time, the filing of the charge-sheet or by remand to custody under Section 309(2). The order for release on bail may however be cancelled under Section 437(5) or Section 439(2). Generally the grounds for cancellation of bail, broadly, are, interference or attempt to interfere with the due course of administration of justice, or evasion or attempt to evade the course of justice, or abuse of the liberty granted to him. The due administration of justice may be interfered with by intimidating or suborning witnesses, by interfering with investigation, by creating or causing disappearance of evidence etc, The course of justice may be evaded or attempted to be evaded by leaving the country or going underground or otherwise placing himself beyond the reach of the sureties. He may abuse the liberty granted to him by indulging “in similar or other unlawful acts. Where bail has been granted under the proviso to Section 167(2) for the default of the prosecution in not completing the investigation in 60 days, after the defect is cured by the filing of a charge-sheet, the prosecution may seek to have the bail cancelled on the ground that there are reasonable grounds to believe that the accused has committed a non-bailable offence and that it is necessary to arrest him and commit him to custody. In the last mentioned case, one would expect very strong grounds indeed.
(underlining mine)
22. In the case of Aslam Babala Desai v. State of Maharashtra , the Supreme Court while dealing with this question held as follows:
14, We sum up as under:
The provisions of the Code, in particular Sections 57 and 167, manifest the legislative anxiety that once a person’s liberty has been interfered with by the police arresting him without a Court’s order or a warrant, the investigation must be carried out with utmost urgency and completed within the maximum period allowed by the proviso (a) to Section 167(2) of the Code. It must be realised that the said proviso was introduced in the Code by way of enlargement of time for which the arrested accused could be kept in custody. Therefore, the prosecuting agency must realise that if it fails to show a sense of urgency in the investigation of the case and omits or defaults to file a charge-sheet within the time prescribed, the accused would be entitled to be released on bail and the order passed to that effect under Section 167(2) would be an order under Section 437(1) or (2) or 439(1) of the Code. Since Section 167 does not empower cancellation of the bail, the power to cancel the bail can only be traced to Section 437(5) or 439(2) of the Code. The bail can then be cancelled on considerations which are valid for cancellation of bail granted under Section 437(1) or (2) or 439(1) of the Code. The fact, that the bail was earlier rejected or that it was secured by the thrust or proviso (a) to Section 167(2) of the Code then receds in the background. Once the accused has been released on bail his liberty cannot be interfered with lightly i.e. on the ground that the prosecution has subsequently submitted a charge sheet. Such a view would Introduce a sense of complacency in the investigating agency and would destroy the very Page 1688 purpose of instilling a sense of urgency expected by Sections 57 and 167(2) of the Code. We are, therefore, of the view that once an accused is released on bail under Section 167(2) he cannot be taken back in custody merely on the filing of a charge sheet but there must exist special reasons for so doing besides the fact that the charge sheet reveals the commission of a non-bailable crime .
23. The underlined portion of the judgment referred to above is a clear authority to support the view that if there exists special reasons the bail granted in default can be cancelled.
24. TO put the record straight, I may state here that the Counsel representing the petitioner had referred to the principles laid down in various authority while considering the cancellation of bail to an accused who has either been granted anticipatory bail or bail granted other than under Section 167(2)(a) of the Code. The present case does not involve cancellation of bail in the aforesaid category and, as such, I deem it inexpedient either to refer or analyse them.
25. Bearing in mind the aforesaid principle when I proceed to examine the merit of the case, I find that earlier a case under Section 363 and 365 of the Indian Penal Code was registered and after investigation it. has been found that a child aged about four and half years has been kidnapped for ransom and the petitioner had dominant role in that. Not only that the investigation had disclosed graver offence but offence of such nature that no Court would had granted bail to her. As such, the learned Judge rightly did not allow her to continue on bail granted earlier on default, after the submission of the charge sheet.
26. Any observation made by me in this case shall have no bearing at the later stage of the trial and further shall not prejudice the petitioner in case she resorts to remedy under Section 439 of the Code for grant of bail.
27. In the result, I do not find any merit in this application and it is dismissed accordingly